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COPYRIGHT DEPOSIT. 



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By 

Albert W. Gaines, B.A., LL.B, 

of the Chattanooga (Tenn.) Bar 




©tit mm proSctt 
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Brookline, Boston 

The Riverdale Press, Publishers 

1913 



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Copyright, 1913 
By The Riverdale Press 



The Riverdale Press, Brookline, Boston, Mass., U.S. A. 



3 ; . i 



Contents 



The Limb of the Law 






3 


Fink v . Evans 






17 


Confession and Avoidance 






22 


The State v. Linkhaw 






26 


The Opinion 






29 


The Lawyer's Lachrymal Rights 






32 


In Totidem Verbis 






36 


A Case "In Point" 






39 


Ezekiel's Alibi . 






48 


Liberal Construction . 






50 


Wenninger v. Mitchell 






53 


Charging the Jury 






59 


Jus Mulorum 






60 


The Law Student's Soliloquy 






65 


A Case of Locatio 






68 


Golf versus Law 






72 


The Law of Vagrancy 






75 


Per Tout et Non per My 






78 


A "Breach of the Peas" 






80 


Ezekiel's Plea . 






87 


De Rivafonoli vs. Corsetti 






89 


In re Goose . 






94 


Osculatory Assault 






98 


The Jury . 


. 




102 


Afterthought . 






107 



Preface 

1 JOURNEYED thro' the realms of law, 
And, as I wandered on, I saw 
A gentle Muse who said to me 
That actually she could not see 
Why lawyers should not paint in rhyme 
The glories of the law sublime. 
I told her that in law's domain 
Was naught to catch the poet's strain, 
That in the realms of legal lore, 
The wings of fancy fail to soar, 
And that there was no citadel 
Of law up where the Muses dwell. 
She said from text-books and the code 
She'd not expect a lyric ode, 
Nor from the digest I'd prepare 
An epic or an idyl rare; 
But yet she thought I might betimes 
Indite some pointed, rambling rhymes. 
I looked again, and then I saw 
She was the comic Muse of law, 
And so, methought, perhaps I might 
Some sort of limping lines indite, 



vi Preface 

Which, tho' they'd shamble 'cross the sheet, 

They'd amble on poetic feet. 

So, with the comic Muse a friend, 

These modest verses I have penn'd ; 

And, tho* Parnassus shines afar, 

I trust a kind, indulgent bar 

May in these lines some merit see 

And come along and smile with me. 



Flotsam and Jetsam 



The Limb of the Law 

The law; it hath honored us, may we honor it. 

— Daniel Webster. 

O THEMIS, stern goddess, who presides o'er 
the law, 
Thy inspiring aid we invoke, 
While we try to portray, in a rhythmical lay, 

The disciples of Blackstone and Coke. 
If now we would sing of a common-place thing, 

As the rose, the brook or the stars ; 
Or if we craved light to help us indite 

A Homeric epic to Mars; 
Or if we would tell of the dearest gazelle, 

Or the houri with the eyes of the fawn, 
Or if we would trace on the beautiful face 

Of a maid the blush of the dawn ; — ■ 
With a stroke of the pen we would dash it off then, 

Thy aid we ne'er would invoke, 
Nor that thou descend from Olympus to lend 

Inspiration to the poetic stroke ; 
But when we would draw the limb of the law, 

And paint him in rhythm and rhyme, 



4 Flotsam and Jetsam 

When we would portray, in a poetic way, 

A theme so grand and sublime, 
Then we would invoke the Olympian folk, 

The muses and gods galore, 
Our pen to inspire with a poetic fire, 

And a fund of mystical lore. 
While in prose we describe the brief -making tribe, 

In language quite pithy and terse, 
We all truly need inspiration indeed, 

To put the attorney in verse. 

The young lawyer dreams — how real it seems — 

And he conscientiously feels, 
That it will not be long ere clients will throng, 

Fairly treading on each other's heels ; 
His future he views in roseate hues, 

In visions of greatness he sees, 
His opponents in court made but the sport 

Of his incontrovertible pleas. 
But when he has waited for a practice belated, 

And the cold world passes him by, 
When his prospects he views thro' the dumps and the 
blues, 

And he thinks it all o'er with a sigh, — 
Then he forms the conclusion that the law's a delusion, 

Of which the youth should beware, 
A siren that sings of the loveliest things, 

But proves a fraud and a snare ; 



The Limb of the Law 

But just when it seems that all of his dreams 

Of success have proven a lie, 
This votary of Themis — now in extremis — 

Sees a rift in the clouded sky ; 
An advancing foot-fall, like an angelic call, 

Strikes plain on his listening ear, 
A litigant astray seems coming his way — 

Ye gods! a client draws near! 
As when drifting afloat from a harbor remote, 

The sport of the wind and the wave, 
A small bark and frail sees a rescuing sail 

Hast'ning most opportunely to save ; 
So, with thrilling emotion, in a clientless ocean, 

The young lawyer, (far from the land), 
Is made to rejoice at the sound of a voice, 

And the touch of a client's hand. 
But we here draw the veil over every detail — 

We are truly in conscience bound 
Not a thing to reveal, as we certainly feel 

We are treading on sacred ground ; 
For whom could you find that would be so unkind, 

Yea — who would be so base, 
Or so very rude as to dare to intrude 

On the lawyer's very first case? 
If there was a flaw in his view of the law, — 

Which was most probably true, — 
Is that any reason why professional treason 

Should expose it to the vulgar view? 



6 Flotsam and Jetsam 

No! no! — the mistakes which the young lawyer makes, 

We will write them all in the sand, 
And the next wave that sweeps from the Lethean deeps 

Will leave not a trace on the strand. 

We do not maintain that it's always so plain 

That the lawyer's without any flaw, 
But 'twould be hard to find any one more maligned 

Than this self-same limb of the law. 
For instance, we cite what Coleridge did write: 

When of business there was a great dearth, 
The devil once took a journey to look 

At his rich, fertile farm, the earth; 
That while on his journey, he saw an attorney 

Kill a viper hard by a stable, 
And he smiled this to find, as it put him in mind 

Of Cain and his brother Abel. 
This cannot but be a libel per se> 

As you will plainly perceive, 
When the attorney "raised Cain" with the viper 'twas 
plain 

A reminder of Adam and Eve. 
And it shows, in our view, that the Scriptures are true, 

Wherein it is solemnly said, 
Yea, gravely decreed, that the woman's seed 

Shall bruise the serpent's head ; 



The Limb of the Law 7 

And we think that the act is proof of the fact 

That the lawyer is ever the foe 
Of vipers and snakes, of humbugs and fakes, 

And of all that is vulgar and low. 

And some people quote what the poet once wrote : 

"Let us kill all the lawyers,'* to a man, 
And they say that Shakespeare thus makes it quite clear 

What he thinks of the brief -making clan ; 
But if you will turn to the page, you will learn 

To the lawyer high praise is there paid, 
For the utterance was made by a pal of Jack Cade, 

When the plans for rebellion were laid ; 
For it's plain as the day where the obstacles lay — 

That no insurrection could thrive, 
That rebellion must fail and the law must prevail, 

Where there was a lawyer alive. 
And so you will find that those who're inclined 

To commit some dastardly deed, 
Would kill, if they durst, all the lawyers at first, 

And then 'twould be easy indeed. 

There's a story one hears, coming down the years, 

That one of the ancient bards, 
Aristophanes, used words like these: 

"The lawyers are all blackguards." 
We shall have to admit that the word that was writ 

By the poet was Eurokroptoi, 



8 Flotsam and Jetsam 

And it can't be denied that the term was applied 

To the lawyers, the Sunagoroi; 
But if you would seek the truth from the Greek, 

You will find that the humorous bard 
Shows he never had heard any thing so absurd 

As a lawyer's being blackguard. 
The thoughts he expressed are made but a test, 

To show that, if proven, the claim 
That the lawyer's blackguard, it wouldn't be hard 

To prove all the world is the same. 

Some are wont to relate how Peter the Great, 

The redoubtable Muscovite Czar, 
When stopping awhile in the British Isle, 

And viewing the English bar, 
Was heard to declare, with an arrogant air, 

What he alleged to be true, 
That in all the state of Peter the Great, 

Of lawyers there were but two; 
And he further remarked that when he debarked 

In the land of the Slav again, 
'Twas his firm, settled will to instantly kill 

One of these lawyers twain. 
And now when today we take a survey 

Of the land of the Russian Czar, 
See anarchy's reign, with its riotous train 

Or murder, oppression and war; 



The Limb of the Law 

When so plainly we see such disorders can be, 
And that lawlessness has such a growth, 

We cannot but know from the status in quo, 
That Peter killed the lawyers both. 



Some people there are who are wont to declare 

That the lawyer's life's one full of ease, 
That all of his thought is expended on naught 

But charging exhorbitant fees ; 
And when they would draw the limb of the law, 

He appears with an indolent air, 
With a typewriter clerk to do all the work, 

As he lolls in his easy chair ; 
And to make more complete the picture, his feet 

The top of the desk reveals, — 
An ingenious way for his brains, they say, 

To trickle from his hoisted heels. 
But we wish to remark to him who'd embark 

On life's calm, untroubled sea, 
Under blue vaulted skies, where no storms will arise 

To drive him to windward or lee, 
He should not spread his sails where the furious gales 

Of the law make the ocean to roar, 
Where the wild tempest beats on the voyaging fleets, 

Driving many a wreck ashore ; 



io Flotsam and Jetsam 

For the lawyer's life is one full of strife, 

Of alternate ups and downs, 
Dame fortune today drives dull care away, 

And tomorrow she gloomily frowns ; 
For it's not alone with troubles his own, 

That the lawyer has ever to deal, 
But he also bears the burdens and cares 

Of others with equal zeal. 
His work is not done with the set of the sun, 

But oft in the still of the night, 
When the countless stars peep and the world is asleep, 

He is working with all his might ; 
And meanwhile the client, on his lawyer reliant, 

Unconcernedly, carelessly sleeps, 
Snoring out the night till the morning light 

Into his chamber peeps. 
And when all is done and the battle is won, 

And the lawyer makes a modest charge, 
This very same client, in a manner defiant, 

Says the fee is outrageously large! 
Our clients, 'tis true, can never see through 

The question of fees complex, 
And that as to size the maxim applies : 

De minimis non curat lex. 

Then some people claim, emphasizing the same, 
But naught of the truth discerning, 



The Limb of the Law " 

That in regions below, in the realms of Pluto, 

Some legal lights are burning ; 
And some intimate that when a just fate 

Consigns them to that jurisdiction, 
They'd dispute with Pluto the status in quo, 

And probably try an eviction. 

This count we deny, and by way of reply, 

Say it takes no proof to show, 
As it's self-evident, no lawyer's content 

In an adverse court below. 
But suppose that we take, just for argument's sake, 

A case, and let us admit, 
That the lawyer should stray from the narrow, straight way, 

Into the Bottomless Pit ; 
That in regions below, in the realms of Pluto, 

The lawyer should have to be tried, 
Whether Heaven he'd gain or in Hades remain — 

A question for the court to decide. 
Then methinks that I see the Judges all three 

The Hades judiciary guiding, 
Jove's sons, ^Eacus and Rhadamanthus, 

And Minos, Chief Justice, presiding; 
And there is also, cruel old Pluto, 

In his flaming red robes of state, 
And Proserpine too, and the whole Harpy crew, 

While Cerberus is guarding the gate. 



12 Flotsam and Jetsam 

Then Minos, C. J., methinks I hear say 

To the lawyer thus arraigned below : 
"You are doomed here to stay forever and aye 

In the realms of King Pluto, 
Unless you can show to the Court here below, 

Beyond a reasonable doubt, 
And make it appear that you don't belong here, 

The Court cannot let you out." 

It seems then to me I plainly can see 

The lawyer slowly arise, 
His manner as free as in Hell it could be, 

And addresses the Court thus-wise: 
"If the learned Court please, I am not Hercules, 

And hence cannot Cerberus steal, 
Nor can I aspire with an Orphean lyre 

To move you to grant my appeal ; 
But I shall undertake, with the law's help, to make 

It plain to an unbiased soul, 
So it will appear clear that I don't belong here, 

In this unpleasant, sulphurous hole ; 
It cannot appear that I am domiciled here, 

With no amnio manendi, 
And when I'm away, surely no one will say, 

There's an animus revertendi: 
By all which is meant I'm a non-resident, 

And it doth fully appear 



The Limb of the Law 13 

Conclusively that I've no habitat 

Nor permanent residence here." 
Then, methinks, with a frown, old Pluto comes down 

From his throne, and says: "O Judge, 
The lawyer clan spoils many a plan 

Of mine, and I owe them a grudge; 
And now when at last one of them's fast 

In my clutches, I will not let go, 
And the Court will, I pray, let me fully repay 

Old scores with the lawyer below." 
Says the learned C. J., in a judicial way: 

"By the law it is made to appear 
Very clearly, I wot, that the lawyer has not 

A permanent residence here ; 
But 'tis perfectly plain that his plea here is vain, 

For in Hades where we're employed, 
What does not agree with Pluto's decree, 

Is unconstitutional and void ; 
And since it is clear that the lawyer has e'er 

Been opposed to infernal laws, 
Our judgment is that a ne exeat 

Will issue at once in the cause; 
And it is decreed now that the Court will allow 

No appeal from the final decree, 
And the lawyer here may make arrangements to stay 

Through the countless ages to be." 
It is very well known that the lawyer is prone, 
(It grieves me sore to report,) 



14 Flotsam and Jetsam 

When the judgment's adverse, to pour out a curse 

On the head of the ignorant Court; 
And, I opine, he would rather incline, 

In the face of so flagrant a case, 
To use not a few of epithets new 

E'en to Pluto and those of his place, 
But instead he'd say: "Now, since the Court will allow 

No appeal — lest justice miscarry — 
I shall make use, in fine, of the right that is mine — 

And go up on a certiorari" 

The Judge sits alone 'pon his great white throne ; 

It is the judgment day; 
He weighs the acts and He sifts the facts, 

And methinks I hear Him say: 
"When first the universe was made, 

I looked and I plainly saw, 
I'd made, alas! a shapeless mass, 

And then I made the law ; 
And since that time the law sublime 

Is made the only source, 
Wherein resides the power that guides 

The planets in their course; 
By law, the countless, circling suns 

That gild the face of night 
Sweep on apace thro' boundless space, 

And twinkle in their flight ; 



The Limb of the Law 15 

The pendent world as it is whiiTd, 

With other worlds thro' space, 
As on it rolls, by law it holds 

Its orbit and its place: 
Likewise for man was made a plan, 

By law he should provide 
To regulate th' affairs of state, 

And the social world to guide; 
And it was plain that to maintain 

The law inviolate, 
There should be then some learned men, 

And the lawyer was create ; 
The lawyer-clan is part of the plan, 

The fixed aim and design, 
'Tis the lawyer who must carry through 

The purposes divine ; 
Should the limb of the law his hand withdraw, 

Right-rule would be but a dream, 
The social fabric totter and fall, 

And anarchy reign supreme ; 
The lawyer e'er, it is quite clear, 

To his calling has been true, 
As he viewed the right, done with his might, 

What his Maker would have him do ; 
Protecting the cause of the helpless poor, 

And those to wrong a prey; 
For glittering gold he never sold 

Nor bartered their rights away ; 



i6 Flotsam and Jetsam 

With an open hand for charity, 

Sympathetic and sincere, 
He helped the weak, and from the cheek 

Of sorrow kissed the tear ; 
Sweet mercy pleads his gentle deeds 

Of love at heaven's gates, 
The mercy which he to others showed, 

That mercy for him awaits ; 
Upon the altar of duty he laid 

His talents, and he has won 
The verdict which e'en the angels crave : 

'Limb of the Law, well done.'' 
Therefore, the writ from the bottomless pit 

Is granted without restriction, 
The record will show that the Court below 

Is without any jurisdiction." 

The fiat fast flies through Paradise, 

Borne on an angel's wing, 
As the lawyer waits at the pearly gates, 

They on their hinges swing; 
He is made acquaint with Peter, the Saint, 

Who the new arrival greets — 
The limb of the law, sans a fault or a flaw, 

Is walking the golden streets. 



Fink v. Evans 

12 Pickle (95 Tenn.) 413. 

Of horn and morn and hark and bark. 

And echo's answering sound, 

All poets' wit hath ever writ 

In dog'rel verse of hounds. 

—Hood. 

JfTT^WAS a starlit, bright November night, 

And the moon, with its shimmering beams, 
-*■ Rose over the hills of old McMinn, 

Silv'ring the woods and streams. 
'Twas an ideal night for the chase of the fox 

In the Mouse-Creek Country round, 
And a single blast on the hunter's horn 

Calls yelping forth many a hound : 
Then away they fly, with a hue and cry, 

Through wood, o'er hill and dale, 
Till the baying sound from a distant hound 

Announces the strike of the trail; 
Then vet'ran and pup take the leader's call up, 

Till the cry of the howling pack, 
On the wings of the night, brings the hunter delight, 

For the dogs are now hot on the track. 



is Flotsam and Jetsam 

But Reynard was ever a sly old fox, 

And he deals in deepest disguise ; 
In the midst of the chase, an arch smile on his face, 

He takes to the railroad ties. 
The west-bound fast express was due — 

Which was probably known to the fox — 
Who now leaves his trail and the scent on the rail, 

Just to get those dogs in a box. 

So hound after hound, with his nose to the ground, 

As the train thunders down the grade, 
Along the track flies, fairly leaping the ties, 

Not suspecting the trap that was laid. 
O, horror to relate! 'tis as certain as fate, 

There'll be a collision, unless 
One gets off the track, or the other goes back, 

The dogs or the fast express. 
With dogged, unyielding persistence, the hounds 

Dispute the right to the track, 
Till along come the cars, like the mad rush of Mars, 

And kill about half of the pack. 

Now the hunter who owned those valuable dogs — 
Worth more because dead, I think — 

Was sorely aggrieved at the treatment received, 
So he sued the receiver — Fink. 



Fink v. Evans 19 

Grave, serious, difficult questions of law 

Rose before the honorable courts ; 
Fierce the battle was waged by the counsel engaged, 

As we gather from Pickle's Reports. 
One very vexed question arose in the case, 

Whether, under Tennessee laws, 
Considering his acts and all of the facts, 

The fox was the proximate cause ; 
For it may be admitted that, if as a fact, 

The fox had not gone on the track, 
Those valuable curs, it surely appears, 

Would not have been lost from the pack. 

Then another difficult question arose 

In the struggle to get redress, 
In which of them lay the clear right of way, 

The dogs or the fast express? 
The cars had the right to the railroad track, 

This point was perfectly plain, 
But the right of the pack on the fox's track 

Clearly clashed with the right of train. 
If a track's on a track, and a train and a pack 

Have both of them rights of way, 
Then the question of right becomes one of might, 

So all the authorities say. 

But what was the value of the dogs deceased? 
A question of dire import, 



20 Flotsam and Jetsam 

And one that was vexing and very perplexing, 

And that worried the honorable court. 
The proof of the plaintiff established the fact 

That the dogs were young and fleet, 
And that while ev'ry hound was good "all round," 

For the possum they couldn't be beat. 
The plaintiff himself, when he got on the stand, 

Told the twelve as they sat in the box, 
That a hound, as a rule, was worth more than a mule — 

That is — for the chase of the fox. 
The defendant made light of the proof thus adduced, 

As foolish, absurd and thin, 
And he proved without doubt that hounds were without 

Any value in old McMinn. 

But the court, considering all of the facts, 

Held the hounds did not exercise 
That care and forethought which the law says they ought, 

Thus causing their own demise ; 
That a prudent hound-dog, in a case like this, 

Would employ his gumption and brain, 
When the whistle would blow he wouldn't be slow 

In giving away to the train. 

When the plaintiff was told the result of the suit, 

And he figured the costs and the fees, 
It is thought then and there the circumambient air 

Felt quite a perceptible breeze. 



Fink v. Evans 21 

When further informed, in a technical way, 

That the learned Court, the Curia, 
Had decided his case by applying the phrase 

Of damnum absque injuria, 
It is possibly true that he said that he knew 

No Latin — and couldn't translate, 
But he thought that he heard a strong English word 

In the Latin which settled his fate; 
To his feelings long pent he would have to give vent, 

And he did it without any qualm, 
For his feelings were best and most clearly expressed 

In that Latin's first syllable — damn. 



Confession and Avoidance 

IT created a sensation in the Darktown congregation, 
When Ezekiel said he wished to be a saint ; 
And the members all asserted that "when 'Zekiel 
got converted, 
'Twas enough to make the very Devil faint." 
But they took him on probation to accomplish his sal- 
vation, 
They exhorted him a better life to lead ; 
Notwithstanding this, howe'er, he was summoned to 
appear 
To the charge of dancing — deadly sin — to plead. 

"I iz come befo' de Session, fo' to make you my con- 
fession," 
Said Ezekiel, with a solemn countenance; 
"I distinctly recollects all dem solemn, wahnin' texts, 

Dat you coted 'bout de gamblin' an* de dance ; 
How dat when I got de 'ligion, show' I mustn't cut de 
pigeon- 
Wing no mo'; an' dat dancin', 'twas de Debbil's own; 
Dat 'Come seben, come eleben? wouldn't take me up to 
Hebben — 
An' I vow'd dat I would leabe 'em all alone. 



Confession and Avoidance 23 

"Zi wuz stridin' an' a-reachin', an a-comin' to de preach- 
in, 

In a mighty hurry, night or two ago, 
On a sudden I wuz facin' an open doo' adjacen', 

Down dar in de Pickaninny Row ; 
Zi wuz in de doo' a-glancin', I cud see dey's gwyne to 
dancin', 

(An' my bredren, all dem gals dey fahly shine!) — 
As dey wuz 'bout to begin it, jes' allows I'll stop a minute, 

As dey passes up an' down de dancin' line. 

"Den de fiddle 'gins to singin' an' de banjo 'gins to 
ringin', 
An' de promptah, he shouts, l S'lute an' balance fo\ 
An' dem niggahs go paradin' wid dey pahtnah's promo- 
nadin', 
An' dey chassees back and foth across de flo; 
As de promptah calls de figgahs, like a wave uv sea dem 
niggahs 
Sweeps across an' back an' thru so vehey neat, 
Sho — I tells you, pahson, truly, dat I gits somewhat 
unruly, 
An' I feels a sudden fidgets in ma feet. 

"Den dey wahms up to de dancin', all retirin' an' ad- 
vancing 
An' dey stahts into de Ole Virginny Reel, 



24 Flotsam and Jetsam 

Den dey 'gins to dance de hoedown, growin' gradual to 
de breakdown — 
(You can imagine, bredren, how dis niggah feel!) 
Den de music libely growin', all de instruments a-goin', 

An' de ragtime floats upon de air so sweet, 
Dat dis niggah den detected dat his nerves dey 'come 
affected, 
An' he can't control de fidgets in his feet. 

"How it happens I'se no notion, but dis coon wuz soon 
in motion, 
When de promptah, he calls out, 'Gran 1 right an' lef, 
I wuz in among dem niggahs, an' a-dancin' all de figgahs, 

(For in trufe, no coon can dance 'em like myse'f) ; 
Yes, I danced de heel-an' toe, double shufflin', 'cross de 
flo', 
Jig and juba, clog, an' den de highlan' fling; 
Den I jin'd in de cotillion — an', pahson, 'twuz wuth a 
million 
Jes' to see de way I cut de pigeon-wing! 

"But my bredren uv de Session, in considerin' dis con- 
fession, 
I des wahnts to tell you what de lawyahs say ; 
Dat no man can be convicted and no punishment in- 
flicted, 
Whar de irresist'ble impulse holds de sway — 



Confession and Avoidance 25 

Now, I hopes you ain't gwyne doubt it, when I say I'se 
sorry 'bout it, 
Yes, suhs, dreffle sorry, bredren, I repeat; 
But I'se not guilty, I'se insistin', kase no possible re- 
sistin' 
Can ovahcome de fidgets in de feet." 



The State v. Linkhaw 

(69 N. C. 214.) 

An ignorant , noteless, timeless, tuneless fellow. 

— Byron. 

FOR disturbance of the public worship," 
So the indictment read, 
"Against the peace and dignity 
Of the state," it further said. 
To which indictment there was filed 

Defendant's plea, to wit: 
That said Linkhaw had broke no law, 
And he should go acquit. 

The crime so charged was that the accused, 

Lacking musical education, 
Sang psalm and hymn with such a vim 

He disturbed the congregation ; 
That when the choir and ohters all, 

('Twas one of the devil's wiles), 
Had ceased to sing, still Linkhaw's voice 

Went sounding down the aisles. 

And it was charged and duly proved, 
That when Linkhaw elected 



The State v. Linkhaw 27 

To sing at all, the people all 

Were curiously affected ; 
The frivolous folk thought it a joke, 

And laughed and were quite gay, 
While the devout were so put out 

And mad — they could not pray ; 
The parson, it was duly proved, 

Would not give out the hymn, 
For fear 'twould draw from Bill Linkhaw 

The horrid voice of him ; 
The presiding elder, too, 'twas said, 

Most positively refused 
To come, for fear that he would hear 

The voice of the accused. 

The defendant proved himself devout, 

And that, though sinful clay, 
Himself he found in conscience bound, 

To sing as well as pray; 
Moreover, the constitution, 

Aside from moral qualms, 
Did guarantee his worship free 

In singing hymns and psalms. 

The jury found against the accused, 

That he, in his devotions, 
Lest he disturb, must gently curb 

His musical emotions ; 



28 Flotsam and Jetsam 

That he his worship could maintain, 

But, like the curfew's ring, 
Though he could shout and be devout, 

That Linkhaw must not sing. 

But 'twas held by the court of last resort, 

To which the case then went, 
That in Linkhaw the judges saw 

No criminal intent; 
And that, although the proof did show 

That Linkhaw's voice was awful, 
The judges found no valid ground 

For holding it unlawful. 

And so in North Carolina now, 

Regardless of church or creed, 
The right inalienable to sing 

Is fully guaranteed ; 
And from the Smokies to the Sea, 

Wherever the church bells chime, 
The people cling to the right to sing, 

Without committing a crime. 



The Opinion 

THERE is silence in the courtroom, 
And the lawyers in array, 
Sitting quietly expectant, 

For it is opinion day ; 
All the lawyers look so anxious 

And so nervous-like beside, 
You'd conjecture from their faces, 

That the bar was being tried; 
Dignified and proud, his Honor, 

With a supercilious smile, 
Looks relentless on his victims, 

As he fingers with the file; 
Then he launches his opinion 

In the case of plaintiff Doe, 
'Gainst my client, the defendant, 

By the name of Richard Roe. 

First, methinks I have detected 
Intimations — just a trace — 

Of a leaning toward defendant, 
As his Honor states the case; 

As he threads the tangled mazes, 
Of the facts and of the law, 



so Flotsam and Jetsam 

Pointing out the plaintiff's laches, 

Picking here and there a flaw, 
Then my nerves become more quiet, 

And a smile creeps o'er my face, 
For I'm feeling fairly sanguine 

That I may have won the case; 
But then, just as I'm feeling 

That I am about to get 
A decision, then his Honor 

Thunders forth the words: "But yet — " 

What was sunshine now is shadow, 

And the smile fades from my face, 
As his Honor, growing serious, 

Freely comments on the case; 
As he quotes from the citations, 

And the evidence he weighs, 
'Tween the plaintiff and defendant, 

Like a pendulum he sways; 
With the seeming vacillations, 

Hope and prospects rise and fall, 
I'm so flustered with the fidgets, 

I can scarce sit still at all ; 
Then his Honor summarizes, 

And, discussing the relief, 
Calls me learned, able counsel, 

And he compliments my brief ; 



The Opinion 31 

Me he lauds and eulogizes, 

With such kindliness and grace, 
That my spirits sink within me, 

For I know Tve lost the case. 

There's a law of compensation, 

Which the Courts all kindly heed, 
Just a sort of consolation, 

Tho' it's very small indeed ; 
Ever in the Court's opinions 

You will find it in its place — 
One attorney gets the praises, 

While the other wins the case. 



The Lawyer's Lachrymal Rights 

Ferguson v. Moore, 98 Tenn. 342. 

Inter dum lachrymae ponder a vocis habent. 

—Ovid. 

IN THE court below, as the records will show, 
The plaintiff a verdict obtained, 
On both of the counts for goodly amounts, 
And of this the defendant complained ; 
And in order to try to at once rectify 

The judgment he had to face, 
And to plainly show the errors below, 
The defendant appealed the case. 

In the record we find this error assigned: 

In a fit of inordinate zeal, 
The attorney shed tears before the twelve peers, 

As he made an impassioned appeal : 
That the tears that were shed had surely misled 

The jury as they sat in their place, 
Who with prejudiced eye, and judgment awry, 

Had mistaken the right of the case ; 
That the jury was swayed — not by arguments made, 

According to the facts and the laws, 
But by sob and the sigh and the moistened eye, 

And the Court should reverse the cause. 



The Lawyer's Lachrymal Rights 33 

The question, in short, which the Honorable Court 

Was asked to consider and try, 
As the records recite, was the disputed right 

Of attorneys-at-law to cry : 
And we are advised that the Court recognized 

The importance of the question involved, 
As in all Tennessee the whole bar would be 

Affected by the way it was solved. 
We beg to commend to every friend 

Of the bar the Court's review 
Of the point in dispute, which arose in the suit, 

And the inferences which they drew. 
"Some lawyers there are (and they are not very rare)," 

So the opinion of the Court recites, 
"Who, with flowers and frills and rhetorical thrills, 

Indulge in fanciful flights; 
There are some who use each of the figures of speech, 

Quoting Shakespeare, Byron and Burns, 
And the jury first gropes thro' figures and tropes, 

Then an adverse verdict returns ; 
And some, we confess, seek hard to impress 

By noise and gesticulation, 
They rant and they roar, with really more 

Of lungs than argumentation ; 
And when the Court sees such capers as these, 

Is there really a reason why, 
In impassioned appeals, if the lawyer so feels, 

He should not be allowed to cry? 



34 Flotsam and Jetsam 

So the Court decides, after hearing both sides, 

And all of the cases they cite, 
When the advocate cries, he doth but exercise 

His constitutional right ; 
And the Court further finds, if the lawyer inclines, 

He may plaintively indulge in a sigh, 
And if he commands his lachrymal glands, 

He may slightly moisten the eye : 
Or if he elect to try to affect 

The jury so they will feel 
And be made to see, as clearly as he, 

The force of his earnest appeal , 
He may then shed a clear, round, beautiful tear, 

Like the morning dew-drop on the rose, 
And let it beguile the jury the while 

It dribbles from his classical nose; 
Or, if he desire, and the occasion require, 

In the matter of a grievous wrong, 
Down his innocent cheek a diminutive creek 

May appealingly trickle along: 
Or, if he should feel in the melting mood, 

Like Niobe or Rachel, he may, 
With none to restrain, shed his tears like the rain, 

And weep his great soul away: 
With the flow of his tears no court interferes, 

Except he must not comport 
Himself in a way to impede or delay 

The business and work of the court." 



The Lawyer's Lachrymal Rights 

Now the lawyer's elate in the Volunteer State, 

Having passed a critical crisis, 
And exults and delights that his lachrymal rights 

Are finally stare decisis. 



35 



In Totidem Verbis 

THE defendant was charged with larceny, 
And, to mitigate the crime, 
He put in a plea averring that he 

Was very drunk at the time. 
Policeman Pat, who made the arrest, 

Was put on the stand to show 
The statements which the prisoner made 

Regarding his status quo. 
The Judge, examining the witness, asked; 

"What was it the prisoner said?" 
"He said he was drunk," was Pat's reply, 

Reproachfully shaking his head. 
"You do not comprehend, I fear," 

Said the Judge, as grave as a monk, 
"He did not use the pronoun he, 

And didn't say he was drunk." 
"O yes he did," persisted Pat, 

"As sure as you are born, 
The prisoner said that he was drunk, 

He frankly acknowledged the corn." 
"You don't understand," explained the Judge, 

"My meaning you have confused; 



In Totidem Verbis 37 

Now, didn't he say: '/ am drunk — , 

Aren't those the words he used?" 
"No — no," said Pat, "I wouldn't stand that, 

I'd hit the spalpeen skunk, 
And the lick you bet he wouldn't forget, 

If he'd said your Honor was drunk." 
"O, pshaw! O, pshaw!" cried th' attorney at law, 

"What is it that ails your brain? 
His Honor means did the prisoner say, 

l I am drunk' — now that is plain." 
"Well now," said Pat, "when it comes to that, 

I would not surely swear, 
But if he said that you was drunk, 

I'm sure I did not hear." 
"The Court's desire," said the lawyer with ire, 

Giving the witness a scowl and frown, 
"Is to get in fact, the words exact, 

Preserving the used pronoun ; 
He wants verbatim et literatim, 

The prisoner's own words, to wit: 
First person / — not second, thou, 

Nor third, he, she or it: 
Do not evade the question put, 

From which till now you've shrunk; 
Now, on your oath — did he not say, 

In haec verba, I am drunk?" 
"No — no," said Pat, with an epithet, 

"Condamit, he didn't betray it 



38 Flotsam and Jetsam 

That you was drunk, but now I think, 
Seeing that you are given to drink, 
That you was drunk and are so yet, 
But I swear he did not say it" 



A Case "In Point" 

Rapid Transit Co. v. Dew, 100 Tenn. 317. 

%t I ^WAS Autumn — killing frosts had stripped 
The leaves from shrub and tree ; 

"** 'Twas the season known as nutting time 

In Middle Tennessee; 
The sun was sinking o'er the hill, 

The shadows flitted like 
Fantastic sprites from Fairyland, 

Out on the Charlotte pike; 
Far out of town to where the woods 

And pasture lands began, 
Along the route of the Charlotte pike, 

The Rapid Transit ran. 
The plaintiff, with his hunting dog, 

Laden with nuts so brown, 
From woodlands and from nutting groves 

Was coming back to town ; 
With panting sides and lolling tongue, 

And never looking back, 
The plaintiff's dog essayed to cross 

The Rapid Transit track, 



40 Flotsam and Jetsam 

When just midway — O, cruel fate! 

The dog became aware 
Of scents indicative of birds 

Lading the evening air ; 
He paus'd — and lifting one fore-foot, 

And stiffening out his tail, 
He snuffed and pointed with his nose, 

As if he scented quail ; 
He stood as if bewitched, entranced, 

Without a stir or motion, 
As still as is "a painted ship 

Upon a painted ocean." 



The car was coming down the track — 

The witnesses all state 
That it was whirling toward the dog 

At a very rapid rate; 
Unless it stopped, or unless the dog 

Should give way to the car, 
They would collide — and thus make work 

For members of the bar ; 
The canine took a dogged stand, 

And little did he reck 
The coming Rapid Transit car, 

Like the boy on the burning deck ; 
Ancestral instincts, stronger far 

Than fear, held free control, 



A Case "In Point" « 

The sweet, delicious scent of birds, 

Ravish'd his canine soul. 
There was a collision — sad to tell — 

Which fate would not avert ; 
The dog received a fatal wound, 

The car escaped unhurt. 

Was this the last of the injury 

And wrong that had been done? 
O, no, for with the dog's decease, 

The trouble had just begun. 
The plaintiff sued defendant for 

The sum he said it owed, 
The value of the dog it killed, 

Out on the Charlotte road. 

Defendant made a bold defense, 

And sought to win the case, 
By showing that dogs are valueless, 

And most of them are base; 
And, further, at the common law, 

As all the courts decide, 
'Twas not a theft to steal a dog, 

Tho' 'twas to steal his hide; 
The inference from all of which 

The Court would promptly draw, 
Is that dead dogs are better far 

Than live ones, at the law. 



42 Flotsam and Jetsam 

The plaintiff, Dew, denied that dogs 

Are worthless, mean or base, 
And, as a proof of what he plead, 

He cited many a case. 
He pointed to the snow-clad Alps, 

Where travellers in the snows 
Are rescued by the St. Bernard 

As everybody knows ; 
He said the Indian welcomes death, 

Because he thinks his hound 
Will meet him in the Great Beyond, 

The Happy Hunting Ground ; 
He pictured wife and children dear, 

From harm and danger kept 
By the faithful watch-dog sentinel, 

Guarding them while they slept ; 
Many a time in the silent night, 

When dangers haunt the dark, 
The timid, sinking heart is cheered, 

To hear the watch-dog bark. 
He showed where Alva's bloody men, 

One night on murder bent, 
Stole forth to where the Prince of Orange 

Was sleeping in his tent ; 
The sentries were surprised and taken, 

The guards, detailed to keep, 
Protect and shield the royal Prince, 

Were lying fast asleep ; 



A Case "In Point" 43 

But there was one within the tent 

Watchful and wide awake; 
A sentinel that ne'er was known 

His duty to forsake. 
A little dog gave the alarm, 

And woke the Prince — who then 
Fled and escaped a cruel death 

From Alva's bloody men ; 
And thus the course of history, 

Affecting the human race, 
Was changed by a faithful, little dog, 

Now stigmatized as base! 

Defendant claimed that plaintiff's dog 

Was base-born, and the strains 
Of common, cur-like, mongrel blood 

Went coursing thro' his veins ; 
That there was ' 'terrier" blood in him, 

Of proof there was no lack, 
This fact was made conclusive when 

He tarried on the track. 

The members of the bar well know, 

And none will controvert, 
The fact that none but blooded dogs 

Are ever badly hurt; 
And in this case the dog of Dew, 

Supporting the plaintiff's claim, 



44 Flotsam and Jetsam 

Proved no exception to the rule, 

But emphasized the same. 
The dog deceased exhibited 

A noble pedigree; 
In canine circles, it was plain, 

He was an F. F. T.; 
His sire was "Tribulation I," 

In field-trials ever afront, 
In bench-shows facile princeps, and 

The champion of many a hunt ; 
His grandsire was the King of dogs, 

"Imperial Beppo III," 
No better dog e'er set a hare, 

Or e'er retrieved a bird ; 
In him there flowed the best blue blood 

Of "Champion Lass of Bow," 
From her, no doubt, there is derived 

That classic word bowwow; 
And every dog that opes his mouth 

Must pay a tribute to 
Th' ancestress of the plaintiff's dog, 

Whose royal blood was blue ; 
For many generations back 

He traced his pedigree, 
With English dog-nobility 

Upon his family tree. 
The dog deceased was handsome, fast, 

And the records all disclose, 



A Case "In Point" 46 

He had the widest sort of range, 

And the keenest sort of nose ; 
He'd had distemper, and this fact, 

The witnesses all swore, 
Did not detract from him at all, 

But made him worth the more. 

The Court held, on defendant's part, 

Of care there was a lack, 
And that the plaintiff's dog was not 

A trespasser on the track, 
And, further, that the Court would not 

The course of justice clog, 
E'en tho' they viewed the record from 

The stand-point of the dog. 

Some points decided by the Court 

Our wonderment command, 
To wit: That when a setter "sets," 

He is decreed to "stand"; 
And when he's "standing," strange to say, 

'Tis just as surely true, 
Suspending all of physic's laws, 

That dog is "setting" too; 
A paradox — the reason gropes 

In intellectual fog, 
And yet the "point" is very clear, 

When one observes the dog. 



46 Flotsam and Jetsam 

There was another subtle point : — 

Whether, under the laws, 
The scent of birds was not at least 

A quasi-producing cause; 
But the honorable Court refused to pass 

Upon the point, we note, 
Because, no doubt, they reasoned that 

The scent was too remote. 

The jury gave the plaintiff all 

He claimed on every count, 
The Court most properly refused 

To curtail the amount ; 
And thus the ancient common law 

Was changed and modified, 
And now at law a living dog 

Is worth more than his hide. 
While in this case there's not a trace 

Of poetry refined, 
'Tis yet most fitting it should be 

In dog-gerel enshrined. 

Sometimes the lawyer's sore perplexed, 

When coming face to face, 
With no authorities at all 

To bolster up his case; 
To such we ope the door of hope, 

And offer full relief, 



A Case "In Point' ' 47 



And nevermore need he present 
In court a caseless brief. 

No matter if both law and facts 
Are wholly out of joint, 

The Dew case may be cited as 
A case always "in point." 



Ezekiel's Alib 



Oh, Sammy, Sammy, vy wornt there a alleybi? 

— Tony Weller. 

NOW, accordin' to dis 'ditement, 
As I heahs it read to me, 
I has stole a watah-milyun, 
Which dey say am lahceny ; 
Dat I also tuk a roostah, 

(So I understan' it's writ), 
Likewise sundry 'n divahs pullets, 
On a sartin time, to wit; 

"An, yo' Honah axes 'Zekiel 

Des to state, in his own way, 
'Bout de chawges brought agin him, 

Eb'rything he hab to say; 
So dis niggah, as requested, 

'Fo' de jury an' de jedge, 
Say he sartin am not guilty, 

As de 'ditement dar allege. 

"Ef Ole Zeke wah stealin' chickens, 
On a sartin time, to wit, 



EzekiePs Alibi 49 

Den he wah not pullin' milyuns, 

Sho — dis here you mus' admit ; 
'N' ef he on dat time, to wit, 

(To de Cou't I does appeal), 
Wah a-takin' watah-milyuns, 

He wah on no chicken steal ; 

"Foh it is a fac\ yo' Honah, 

Dat de milyun, full ob juice, 
Nevah perch hisse'f wid pullets, 

Way up on de chicken-roos' ; 
An' de chicken say it isn't 

Des ezacly in his line 
Foh to be diskivered growin' 

On de watah-milyun vine ; 

"So, it 'pears to me, yo' Honah, 

When dis 'ditement chawge so loose, 
Dat dis naggah's in de milyun-patch, 

He is at de chicken-roos' ; 
When it say he's stealin' chickens, 

Sho — it's plain dat he's not nigh, 
Kaze he's den among de milyun vines — 

So I pleads de alibi" 



Liberal Construction 

Baker v. Jacobs, 64 Vermont 197. 

IT WAS in the state where the Green Mountains are, 
And the dappl'd-veined marbles abound, 
That it was ordained when a party had gained 
A verdict the jury had found, 
If the party successful, during the term, 

At which the case was tried, 
Should treat a juror to "victuals or drink, " 
They must set the verdict aside. 

In a judicial bout, the plaintiff won out, 

And, thanking his lucky stars, 
And thinking the jury their duty had done, 

He treated them to cigars. 
So the question arose, as the records disclose, 

As to whether the law was broke, 
And whether the act 'gainst "victuals and drink" 

Included as well a smoke. 

The plaintiff averr'd that it was absurd 

To attempt to remotely link 
A thing that indeed is naught but a weed 

With such as "victuals and drink"; 



Liberal Construction 51 

He further averr'd that drink is a word 

That everywhere is described 
By all who have writ thereon that it 

Is something to be imbibed ; 
He said that to yoke 'Victuals" with smoke 

Was surely a queer conceit ; 
That he had been taught, and that he yet thought 

That victuals were something to eat. 
He pictured the lad — his first smoke he had — 

His face as pale as a sheet, 
Telling stern papa and his fond mamma 

It was only the victuals he'd eat ; 
Then a picture he drew of men in the pew 

Repeating the Apostles' Creed, 
And, altho' devout, emitting about 

A very strong scent of the weed : 
And he said he opined if ladies refined, 

To show the disgust they felt, 
Should apply vinaigrettes and mild epithets, 

They'd be told it was "victual" they smelt. 
"What might we expect would be the effect," 

The attorney for the plaintiff said, 
"If it were decreed by the Court that the weed 

Is victuals like meat and bread?" 
"And a drink must be a liquid," said he, 

"And the law would be but a joke, 
If the Court should decree that a drink could be 

Construed as a sort of a smoke." 



52 Flotsam and Jetsam 

But the learned, dignified, honorable Court, 

When they came the case to decide, 
Held the law had been broke by a treat to a smoke, 

And they set the verdict aside. 
They held it a fact that when the said act 

Was passed — most certainly 
To "drink tobacco" was a phrase well known, 

As common as drinking of tea ; 
That "drinking tobacco" was no new thing, 

As the poets were well aware, 
And they cited Spenser, and Dryden and Pope, 

And old Ben Jonson rare. 
The Court next told of a poet of old, 

Who wrote with a masterly pen : 
"Thus thinke then drinke tobacco" — they said 

This showed it was common then ; 
They quoted Joachin Miller also, 

Where he says: "I drink the winds" — 
If true, then indeed you can drink of the weed, 

And they said, — "The Court so finds." 
So it now matters not just exactly what 

Other honorable Courts may think, 
In the Green Mountain land the Courts understand, 

And they hold that tobacco's a drink. 



Wenninger v. Mitchell 

122 5. W. Rep. 1130. 

Jam protervo 

Fronte petit Lalage maritum. 

— Horace. 

IN THE state of Missouri, where they ''have to be 
shown," 
Dwelt the plaintiff, a widow, forlorn and alone; 
So lonely indeed that she sought for a mate 
To give her relief from the widowhood state ; 
She was prompted, therefore, to at once advertise 
For a man, (for an Adam to share paradise). 

Way up in the state where flows the broad Platte, 

Dwelt an unmarried man, but "a man for a' that." 

While gloomily brooding o'er a bachelor's fate 

He saw the lone widow's "ad" for a mate; 

Whereupon his emotions were fully astir, — 

As the record is silent we cannot aver 

Whether Cupid let fly a love-dealing dart, 

Or whether 'twas Mammon affected his heart; 

At least he was willing, like Barkis, and glad 

To treat with the widow — so he answered the "ad." 



54 Flotsam and Jetsam 

Now, though the lone plaintiff was of husband bereft, 

Her sorrow was softened by the money he left, 

By means of all which the widow was able 

To buy a half interest in a livery stable. 

This she bought from defendant, to whom there was paid 

The money which Skinner, the husband, had made. 



The record discloses, so we understand, 

That the widow could not write a very plain hand, 

And so she employed the defendant to write 

Some letters of love that would tend to excite 

The man by the Platte, who, 'twas hoped, would be 

pleased 
To fill the void made by Skinner, deceased; 
And she promised to give the defendant, we note, 
Her half of the stable for the letters he wrote. 



In short, the widow was willing to trade 
Her half of the stable for the liveryman's aid 
In getting a husband to take Skinner's place — 
And we gather from reading the facts of the case, 
That she thought it was fair and perfectly right, 
(Since the hair of the dog is good for the bite) , 
That the money of Skinner — degrading pelf — 
Should purchase a husband as good as himself. 



Wenninger v. Mitchell 55 

Vainglorious man, with haughty brow, 
Where are your pride and your vanity now! 
When it's shown beyond a reasonable doubt 
That the women at least have found you out, 
And the half of a livery stable can 
Be traded off for the average man! 

And so it was soon agreed by the twain 

That each would the heart of the other enchain, 

And with no obstructions to go between, 

They would swap their affections "sight unseen." 

And these gentle lovers — as lovers ought — 

Had two separate souls, but a single thought, 

And ere the courting by letter was done 

These two loving hearts were beating as one — 

One in Nebraska, along by the Platte, 

In Missouri the other, going fast pit-a-pat : 

And in order to plight her love with a vow, 

The widow, together with defendant and frau, 

Journeyed to Lincoln where (Skinner forgot!) 

She was tightly tied with a nuptial knot. 

The pair's honeymoon had scarcely begun 

When defendant asked pay for the work he had done; 

For the services rendered he asked for a deed 

For half of the stable, as they had agreed. 

But when the fast fleeting honeymoon waned, 

The plaintiff very quickly her reason regained ; 



56 Flotsam and Jetsam 

The request then received an emphatic dissent 
By refusing to pay the defendant a cent ; 
And the benedict then, and his buxom bride, 
Brought suit and they asked the Court to decide 
Whether the livery stable as pledged 
Should be given up for the service alleged. 

We cannot discover, as the record is mute, 
The proximate cause for bringing the suit — 
Whether the husband was angry and sore 
That his value was thought to be nothing more 
Than a livery stable — or whether 'twas so 
That the widow had doubts of a quid pro quo. 

The defendant prayed the Court to note 

The quality of the letters he wrote; 

A fact no one could controvert, 

Because of the husband he made profert. 

The plaintiff contended the agreement was void 

Because of the fact that she had employed 

The defendant to get a husband for her, 

And she was advised, and so would aver, 

That it was against the public good 

And the common weal that people should 

Attempt by agreement to interfere 

With matters that are wholly in Cupid's sphere; 

That no valid contract could be made 

That contemplated such a vicious trade — 



Wenninger v. Mitchell 57 



Trafficking in the affairs of the heart, 

Like so much merchandise sold in the mart. 



The defendant replied that if it were true 

That the contract was void — from his point of view, 

The plaintiff could not maintain her suit, 

Because to her the law would impute 

The same moral wrong — and in the same way — 

In pari delicto, as the lawyers would say — 

That if it was wrong for him to agree 

To get her a husband — then certainly she 

Was equally guilty — he wished to aver — 

In agreeing that he get a husband for her ; 

That equity would never enforce her demands 

Since she came into court with unclean hands. 

But the honorable Court, with clear insight, 
Gravely decided that the plaintiff was right; 
That the consideration agreed to be paid 
Was evidence of an unconscionable trade. 
That Courts of Justice would surely be mocked, 
And the conscience of Courts be sorely shocked, 
If the half of a livery stable could be 
Passed to defendant by solemn decree 
For a consideration so slight — to-wit : 
The two short letters defendant had writ. 



58 Flotsam and Jetsam 

'Twas further decided — so says the report — 

That defendant had really no status in court; 

That public policy would never permit 

The defendant to get a slight benefit 

By the crafty use of a trick or a ruse, 

From any agreement that would tend to confuse 

The ardent affections, that tenderly touch 

The heart, with livery stables and such. 

And the Court, moreover, was pleased to decree 

That it wasn't considered as malum in se 

For a widow forlorn, who had been left 

Alone in the world — of husband bereft — 

To seek in every way that she can 

To get for herself another good man. 

And so the lone widow a benedict got 
And she tied him up tight with a nuptial knot ; 
And she got, furthermore — as it should have been 
A livery stable to keep him in. 



Charging the Jury 

UNCLE RASTUS was a J. P. 
In the Reconstruction Days, 
And he sadly lacked experience 
In the courts and in their ways; 
When the proof was all completed, 

And the arguments were thro*, 
He was in a vex'd dilemma 

As to what was next to do ; 
Then the lawyer, nudging Rastus, 

As amicus curiae, 
Whispered: "You must charge the jury, 

And they must your charge obey." 
Uncle Rastus was uneasy 

As he shifted in his chair, 
And, amid the deathless silence, 
Looked the picture of despair ; 
Glancing nervously about him, 

As he slowly scratched his head, 
Peering sagely o'er his glasses, 

To the jury thus he said: 
"Dis here case ain't been much trouble 

To de Jestice Cote, an' hence 
I jes chawges dis here jury 
Only dollar 'n fifty cents." 



Jus Mulorum 

Mincey v. Bradburn, 103 Tenn. 407. 

5^ ■ A WAS in the early autumn time, 
The summer's course was run, 
"*" And yet there lingered summer days 

Beneath September's sun ; 
'Twas the witching time of the aging year, 

And the lazy, whispering winds, 
Like the sweet, sad notes of the dying swan, 

Went soughing thro' the pines ; 
The woodlands wore their golden garb, 

The fields were russet-brown, 
When a mule resolved to leave the farm, 

And go to Knoxville town. 
The reason why the mule did sigh 

And seek for pastures new, 
He'd heard, perhaps, in Knoxville streets 

The grass luxuriant grew. 
And so he went on pleasure bent, 

But as he loitered round, 
Whom should he meet upon the street 

But the keeper of the pound! 
The cruel man, for such he was, 

With a cold, sardonic smile, 



Jus Mulorum 6i 

Proceeded to arrest the mule 

And put him in durance vile. 
The mule, 'tis said, was quite well bred, 

And he had never sunk 
Low like some men, and was not then 

Disorderly nor drunk. 
The innocent and harmless mule 

Was arrested on the charge 
Of breaking a law he never saw 

By simply running at large; 
And yet at large upon the streets, 

Not molested in the least, 
Walked many a man more dangerous than 

The inoffensive beast. 
Were the laws and rules applied to mules 

Enforc'd, in all details, 
Against the men, we venture, then 

'Twould overcrowd the jails. 

As in the pound the humble mule 

Stood foodless and forlorn, 
His soul he sighed to the country-side, 

The land of oats and corn; 
The dear old farm, the fertile fields, 

The meadow-brook — the grass, — 
What mem'ries rise to tantalize 

A hungry, homesick ass! 



62 Flotsam and Jetsam 

As it was true that no one knew 

Who owned the mule in pound, 
They advertised in the public prints, 

But the owner couldn't be found ; 
The mule himself was criticised, 

'Twas claimed he knew quite well 
His master's name and his master's crib, 

But, mule-like, would not tell; 
'Twas said that he was impolite, 

(And, possibly, it was true,) 
When gruffly he, most positively, 

Refused an interview. 

The mule was sold for a paltry sum, 

Just about the amount of cost, 
When the owner came to prove his claim, 

And sue for the mule he'd lost. 
It seems the mule was advertised 

For only two short days, 
A time too short, the plaintiff claimed, 

To advertise for strays ; 
And any ordinance of a town, 

In this enlightened land, 
That fix'd such rules for straying mules, 

Was void and could not stand. 

In another way, he wished to say, 
(The Court should be advised,) 



Jus Mulorum 63 

It was quite clear the mule was ne'er 

Sufficiently advertised ; 
'Twas only in the Knoxville Press, 

And this fact, he was sure, 
Upon its face, proclaimed the place 

Entirely too obscure. 

With subtle thought defendant sought 

The issues to befog, 
By showing where three days sufficed 

To advertise a hog ; 
He argued, as a precedent, 

Citing the hog example, 
That, if for hogs three days sufficed, 

For mules two days were ample. 

But the Court o'erruled defendant's plea, 

And settled and fix'd the rule, 
That two days time was not enough 

To advertise a mule; 
And giving way to serious thought, 

Indignant, questioned why 
There should be one law for the stall, 

Another for the sty? 
No, no — the strong arm of the law 

Effectually would entwine 
Around the rights of the humblest mule 

As if the mule were swine ; 



64 Flotsam and Jetsam 

And fain the Court would drop a tear 
For the mule, when it was seen, 

There ne'er could be posterity 
To keep his memory green. 

The Court released the baited beast 

By solemn grave decree, 
And as the stray was led away, 
'Tis thought that he was heard to bray : 

"Back to the farm for me." 



The Law Student's Soliloquy 

Legis interpretatio legis vim oblinet. 

I HAVE been through the college and the technical 
schools, 
And somehow, I cannot but feel, 
When giving a thought to the things I was taught, 

That I surely must know a good deal ; 
I can write and can speak both Latin and Greek, 

The stars and the flowers I know; 
Mathematics I've mastered and logic I've learn'd, 

And the sciences, too, I trow. 
Notwithstanding the knowledge I got at the college, 

And despite my master's degree, 
It is true, without doubt, — why I cannot make out, 

The law is a puzzle to me. 
I quite understand the tenures of land, 

Estates that are pur autre vie, 
Contingent remainders, estates in tail, 

And vested estates in fee ; 
I can understand, too, and clearly see through 

Corporations without any soul, 
The Statute De Donis and Shelley's Case, 

And the substantive law as a whole ; 



66 Flotsam and Jetsam 

But when the Courts do begin to construe, 

It clouds and befuddles my brain, 
There appears not a spark as I grope in the dark, 

And I try to see thro* it in vain. 
When, for instance, I see pronounced a decree 

From the very highest court in the land, 
That a "lone widow" can be an "unmarried man," 

I confess that I don't understand ; 
Then I read from reports of superior courts 

Of conservative little Delaware, 
Ignoring the rules that I learned at the schools, 

That "two boots" don't make "a pair"; 
From the old Dominion we have this opinion : 

Tho' a man has departed this life, 
In a learned review, it is held to be true 

That the "widow" is the dead man's "wife"; 
And up in New York (the Empire State), 

The Courts (held high in esteem), 
With the reasons assigned, most solemnly find 

"One horse" is the same as "a team"; 
And the Courts maintain in the state of Maine, 

That under the exemption laws, 
An ordinary "pair of work cattle" are 

The same as "a bull" that draws; 
And by solemn decree in staid Tennessee, 

The Courts have settled the rule, 
That a single "jackass" of whatever class, 

Is an "ox, a horse or a mule." 



The Law Student's Soliloquy 67 

Yes, a horse is a team, two boots not a pair, 

A widow is an unmarried man, 
A bull is a yoke, an ass is an ox, — 

These decisions I study and scan 
From beginning to end, but I can't comprehend, 

So there's nothing for me to do 
But to certainly show the status in quo, 

And the phase of the case construe. 
There's a simple fact that we cannot combat, 

And the Court will judicially know 
That a common jackass will frequently pass 

For one of the genus homo; 
And anyone who can't clearly see thro' 

Decisions so perfectly plain, 
We are bound to conclude (with regrets alas!) 
Can't be anything but a dunce or an ass, 

With the chances that he's insane. 



A Case of Locatio 

Moeran v. N. Y. Poultry and Pet Stock Association 
(28 Misc. 537). 

THE plaintiff was the owner of a tailless Manx cat, 
Which she prized most highly, I ween, 
And she doubtless thought that no such Thomas- 
cat 
In Gotham ever was seen; 
So she loaned to defendant this wonderful cat 

To exhibit in Madison Square, 
With poultry, canines, and pets of all kinds — 
A sort of a Donnybrook Fair. 

But the wily feline promptly begged to decline 

To be subject to the public gape, 
So his bottomless cage o'er the edge of the stage 

He pushed — and made his escape. 
With a clamorous shout, the attendants turned out 

In pursuit of the cat as he fled, 
And they looked everywhere in Madison Square 

For the fugitive cat aforesaid; 
They looked for his track and they searched every crack 

In all of the buildings around, 



A Case of Locatio 69 

And then they looked thro' part of Fifth Avenue, 

But the cat was not to be found ; 
For the Manx meanwhile, with a cat-like smile, 

Had succeeded in hiding his trail, 
For no one could know that he came from the show, 

For this cat he carried no tail. 

When the plaintiff found out that the cat, without doubt, 

Was lost — tho' to memory dear — 
She promptly brought suit for the loss of the brute, 

And defendant was forced to appear. 
The plaintiff proved that to buy such a cat 

What a good round sum it would cost, 
And proceeded to show, what we very well know, 

It's the valuable cat that is lost. 
In truth she proved that this particular cat 

Had never been known to fail 
To win the first prize for beauty and size, 

Tho' he hadn't the sign of a tail ; 
She averred that the Court would judicially know, 

In a matter involving felines, 
That a cat from the ranks of the marvelous Manx 

Was superior to all other kinds ; 
She would furthermore say that the defendant should pay, 

As a matter of justice and right, 
Quite a sum, she opined, for her anguish of mind 

For Zenda — as the cat was hight ; 



70 Flotsam and Jetsam 

"E'en now," she exclaimed, "poor Zenda, perhaps, 

Is wandering about in the streets, 
And wherever viewed is being pursued 

By every dog that he meets ; 
Or what is worse yet, perhaps he has met 

A horrible death — and his lot 
Is to have been made into sausage for trade 

To the wily Chinese on Mott." 

"There can be no relief,' ' plead defendant in brief, 

"For the very good reason, to wit: 
That there is no doubt that the cat was loan'd out, 

At the risk of the owner of it." 

But the Court held that tho' the contract did show, 

A fact to the plaintiff well known, 
That the cat was put there in Madison Square 

At the risk of the plaintiff alone ; 
And while (the Court said) against the fact plead 

Of proof there was scarcely an atom, 
Notwithstanding the plea, it was easy to see 

'Twas clearly a case of Locatum. 
So against the bailee there was passed a decree 

For the sum of fifty dollars and cost, 
Which sum the Court thought the company ought 

To pay for the cat that was lost. 



A Case of Locatio 71 

The Court's said decree against the bailee 

Brought the case to a close — so that 
With the lines we have penned we have come to the end 

Of the tale of a tailless cat. 



Golf versus Law 

IN THE Court of St. Andrews in the County of Fife, 
In the land of the bonny Scot, 
There long has been pending, many counsel de- 
fending, 
A case of some moment, I wot. 
In very many places there are ancillary cases, 

The style is Golf versus Law, 
The principles involved have never been solved, 
And the case at times looks like a draw. 

It seemed at one time, in the dark ages past, 

When the lawyers didn't know very much, 
That the plaintiff would fail, and the law would prevail, 

In the days of Lord Eldon — and such ; 
And, as strong evidence of their ignorance dense, 

An item or two will suffice: 
Littleton and Coke and other such folk, 

Didn't know a "bad pull" from a "slice," 
And as for Lord Eldon, and Mansfield and Brougham, 

And Marshall and Chancellor Kent, 
With all of their lore, if they'd heard the word "fore," 

They would not have known what it meant. 



Golf versus Law 73 

And 0, there is such a tender touch 

Of compassion and pity that pall, 
When we know it is true that they liv'd their lives thro', 

And ne'er knew "Colonel Bogey" at all! 
And sorrows there are for the grief-stricken bar, 

Sounding the depths of the soul, 
To know that they died and to them was denied 

The mysteries of the "nineteenth hole." 

But times have changed since those dark days, 

And they have wrought changes in men, 
And the brief-making clan, well up in the van, 

Have learned a whole lot since then. 
And now, what do we all of us see! 

Why, we look at that lawyer askance, 
Who is not the source of a learned discourse 

On the "grip," the "swing" or the "stance"; 
And the Judge on the bench — he of the woolsack, 

Does he court honor and fame? 
If so, would he dare to just sit there, 

Knowing naught of the royal game? 
Is any judge fit who has to admit 

An ignorance of "cleeks" and "mashies"? 
Why, there's nothing to do except to construe 

Such ignorance culpable laches. 
And if any one for an office would run, 

Why he can do never a thing, 



74 Flotsam and Jetsam 

Unless, as we know, he clearly can show 

That he has the right form of a ' 'swing." 
And so it would seem that the plaintiff's fond dream 

Of success is about to come true, 
When we see in the race to its side of the case 

All the lawyers, excepting a few. 
And the Judge, when he thinks, unconsciously "links" 

His thoughts to the plaintiff, herein, 
And it then only takes the "pull" that he makes 

To assure us the plaintiff will win. 

Now someone may say — What's the case anyway? 

It may as well be explained, 
That lawyer and judge may no longer drudge, 

Is the object to be attained. 
And the plaintiff, you see, wants a final decree, 

To be enforced everywhere, 
A decree that will make the attorneys all take 

An outing each day in the year. 
And it's well here to say there is excellent pay, 

The fees which the plaintiff will give, 
Will be a vast wealth of pleasure and health, 

Which will make it worth while to live: 
With such a decree there surely will be 

An age without a fleck or a flaw, 
When lawyers ('tis clear) will be known everywhere, 

As attorneys and golfers-at-law. 



The Law of Vagrancy 

Jacob Waddel v. State of Georgia, 27 Ga. 262. 

/ live an idle burden to the ground. 

— Iliad. 

IT WAS in the Empire State of the South, 
The land of the Elberta peach, 
Where the soft breezes blow and the watermelons 
grow, 
That defendant committed a breach 
Of the law, and the Grand Jury solemnly found, — 

Fixing the place and the time, — 
That defendant, in the face of the laws of the state, 

Had committed a heinous crime: 
That against the dignity of the sovereign state, 

And the peace of the citizens all, 
Defendant had, "with force and arms' 1 — 
Been doing nothing at all. 

The defendant plead the proper pleas, 

And made a bold defense, 
That according to the charges made, 

He was guilty of no offense; 
That he would evade the charges made, 

Successfully on the ground, 



76 Flotsam and Jetsam 

That he could detect a fatal defect 

In the bill of indictment found; 
That the phrase vi et armis implies 

Activity in strenuous forms, 
And one could never do nothing at all, 

And do it with force and arms. 

Besides, beyond a reasonable doubt, 

'Twas shown to beia fact, 
That he'd once wrought, and had been caught 

Committing the overt act ; 
That once, in a weedy potato patch, 

A witness did avow, 
Tho' much surprised, he recognized 

The prisoner using a plow. 
When well we know "The Man with the Hoe" 

Is praised in terms sublime, 
Pray why and how should the man with the plow 

Be stigmatized with crime? 
Where is our boasted freedom, pray, 

Of which the poets sing, 
When a man is placed behind the bars, 

When he hasn't done a single thing? 

But the Jury found defendant bound, 

And the honorable Court decreed 
That against the dignity of the state 

He was guilty of the deed ; 



The Law of Vagrancy 77 

The deed of doing nothing at all, 

When the indictment did concede 
He had broke the laws, simply because 

He had done no sort of a deed. 

Most solemnly the Court adjudged, 

If birds can sing and won't, 
They yet must sing, as the larks in spring, 

And be punished if they don't. 
The honorable Court pronounced his doom, 

A heavy fine imposed, 
With "force and arms" he must work it out; 

And so the case was closed. 

The prisoner solemnly wended his way, 

Shackled with ball and chain, 
And as he went he gave free vent 

To the following sad refrain : 
"O, Adam and Eve, Adam and Eve, 

What a debt to us you owe, 
O, why did you make that fatal mistake, 

In Eden so long ago? 
If you, as you should, had just been good, 

Been worshipping at the kirk, 
And had just let be the old apple tree, 

There were no such a thing as work." 



Per Tout et Non per My 

A HUSBAND and wife once purchased a fee, 
And invited another to join; 
The deed was made to the vendees three, 

Each paying a third of the coin : 
The land was sold, a profit was made, 

But when they came to divide, 
The third party said, although he had paid 

But a third of the price of the "hide," 
He would have to insist, on his lawyer's advice, — 

As the law was perfectly plain, — 
On having at least one-half of the price, 

And an equal share of the gain. 
He quoted the rule — exceptions none — 

And the law they couldn't ignore, 
How baron and femme in law were one, 

And they never could be any more; 
And how they were simply seised per tout, 

And to him it was perfectly plain, 
That the only thing that they could do 

Was to cut the estate in twain. 
The baron was mad, but clearly saw 

That nothing else could be done, 



Per Tout et Non per My 

So he roundly swore at the Common Law 

For making a pair but one. 
But the other one says the law is a gem, 

As he goeth about in quest 
Of another guileless baron and femme, 

With wealth they want to invest ; 
He indulges himself in a dry little laugh, 

And says, as he slily winks, 
The law that can change a third to a half 

Is a pretty good law, he thinks. 



79 



A "Breach of the Peas" 

The State v. Oscar Neal, 120 N. C. 613. 

What, all my pretty chickens and their dam 
A t one jell swoop? Macbeth 

IN Carolina, the old North State, 
From the record it appears, 
There dwelt defendant, Oscar Neal, 

A youth of tender years ; 
And close beside his father's home, 

A home where sweet content 
And peace of mind and quiet reigned, 

Another pitched his tent. 
The neighbors dwelt on friendly terms, 

There was nor broil nor strife, 
In an atmosphere Arcadian, 

They lived the simple life. 
The dogs and cats were friendly too, 

The chickens often strayed 
Across the line and in both yards 

The little children played. 

But Oscar's father, one spring day, 

('Tis thus Fate oft decrees,) 
Beside his neighbor's backyard fence, 

Planted a patch of peas. 



A "Breach of the Peas" 

The neighbor's gallinaceous brood, 

The "tame, villatic fowl," 
As Milton styles the poultry tribe. 

Began to stray and strowl ; 
And, having predilections for 

The patch of planted peas, 
The golden opportunity 

They chose at once to seize ; 
They flew the fence, and gathered in 

The patch of peas in glee, 
And when the fun and frolic ceased, 

There was not left a pea. 

Now, Oscar was impetuous, 

Much like his great namesake, 
The fiery son of Ossian, when 

The demon's once awake; 
And hence, when he the ruin saw, 

And the damage that was done, 
His fury exceeded the rage and wrath 

Of Ossian 's famous son; 
And, breathing vengeance 'gainst the fowls, 

Despite his youthful age, 
He swiftly swept to his revenge, 

With an Othello's rage. 
Espying one of the thieving tribe, 

He advanced on it apace ; 



81 



82 Flotsam and Jetsam 

The chicken beat a quick retreat, 

And Oscar gave it chase : 
As Hector from Achilles fled 

Around the walls of Troy, 
So fled the frightened chicken from 

The infuriated boy ; 
Across and o'er adjoining lots, 

The ground with feathers strewed, 
Thro' weeds and cane rushed on the twain, 

Pursuer and pursued ; 
The chicken sought a refuge in 

A friendly brush-pile near, 
But Oscar pulled the pullet out, 

Now terrorized with fear ; 
Mercy and pity now were fled, 

Revenge was in his heart, 
And placing a foot upon its head, 

The pullet was pulled apart : 
As Nero, consul then of Rome, 

When Hasdrubal he slew, 
Into the camp of Hannibal, 

The bleeding head he threw, 
So bloody-minded Oscar showed 

Maliciousness prepense, 
By hurling the headless chicken o'er 

His neighbor's back-yard fence. 



A "Breach of the Peas" 

Then spying another chicken near, 

(It looked pea-green to him), 
In rage relentless, Oscar swore 

He'd tear it limb from limb ; 
As soon as found, he chased it round, 

Denouncing it meanwhile, 
Until the frightened fowl dodged in 

Another near brush-pile ; 
With sharpened stick, he jabbed and stabbed, 

And pierced it thro' and thro', 
And then impaled upon a spear, 

He held it up to view : 
Before his neighbor's dwelling place, 

Exulting o'er his foe, 
In savage triumph Oscar marched, 

Parading to and fro, 
As proud as a Roman conqueror, 

Returning victorious home, 
In trophied triumph, marching thro* 

The garish streets of Rome. 

He then saw other "villatic fowls" — 

One was a mother dear, 
Hovering fondly o'er her brood, 

Now paralyzed with fear ; 
Like Nemesis, he madly rushed 

'Pon mother and frightened chicks, 



84 Flotsam and Jetsam 

And soon a score were ferried o'er 

The chicken River Styx. 
Retaliation and revenge 

Now rankled in his breast, 
His blood was up — he vowed a vow : 

Gallina delenda est; 
He strewed the ground with headless fowls, 

His fury unrestrained, 
Until nor hen nor rooster proud, 

Nor chickling wee remained. 

Like Alexander, then he sighed, 

Because he saw nowhere 
A predatory pullet or 

Marauding rooster near ; 
No other gallinaceous worlds 

Remained for him to fight, 
To satisfy his savage soul, 

Or glut his appetite. 

The law took hold of Oscar Neal, 

And indicted him because 
He'd cruelly killed his neighbor's fowls, 

Against existing laws ; 
Against the peace and dignity 

Of the State — so read the bill — 
Maliciously and wilfully 

He did the chickens kill. 



A "Breach of the Peas" 

In Court young Oscar pleaded all 

The pleas known to the law ; 
He took advantage of every slip, 

Of every fault or flaw ; 
He fought the case with stubborn will 

Thro* each successive court, 
From the court of Robert Shallow to 

The court of last resort ; 
He showed that he himself was made 

The victim ol fowl-play, 
That 'twas his neighbor's chickens, and 

Not he, that went astray ; 
That he himself was innocent, 

This he could show with ease, 
And that the gallinaceous tribe 

Themselves had "breached the peas"; 
That in the devastation done, 

The modus operandi 
Showed that the ruin had been wrought, 

Animo furandi; 
That, if /owZ-means had not been used, 

There'd been no breach of laws, 
And hence, of all the damage done 

The chickens were the cause. 
But the Court convicted Oscar Neal, 

O'erruling all his pleas, 



85 



Flotsam and Jetsam 

Denying his right to kill the fowls, 

Tho' they'd destroyed the peas ; 
They held the conduct of the fowls 

Was vicious as the dickens, 
And yet quite clear it did appear 

That they were peas-full chickens ; 
They held defendant had no right, 

In sudden heat and passion, 
To beat to death his neighbor's fowls 

In such a cruel fashion; 
That if a chicken must be killed, 

The law the guide must be, 
And, as a guiding precedent, 

The Court would thus decree : 
The legal way to kill a fowl 

Is the following, to wit : 
In kindness and in gentleness, 

Death must be dealt to it ; 
The killer must confute and meet 

Th' indictments charging writ 
With the proven plea of molliter 

Manus imposuit. 



Ezekiel's Plea 

WELL, Ezekiel," said the Court, 
"It appears from the report, 
Which the jury of the county 
have returned, 
That not only do you sigh 
For the chicken roost close by, 

But the way to it you actually have learned. 
'Tis the policy of the law, 
So that there may be no flaw 

In proceedings of a criminal import, 
To request the accused to plead 
Whether guilty of the deed, 

So, Ezekiel, you may now address the Court." 

"Well, yo' Honah," said old Zeke, 
As he slowly rose to speak, 

"I wants ter tell you all about de case, 
An' old Zeke will take de pledge 
All de trufe to tell de jedge, 

An' to speak it to de jury face to face: 
Zi wuz listenin' t'other day 
To ole Miss, I heahs her say, 



88 EzekiePs Plea 

Dat a lady in society standin' high, 
While a shoppin' in de town, 
When no clerks dey wuz aroun', 

She jes lif a diamond ring she nebber buy; 
An' moreover, say ole Miss, 
Dey don' prosecute foh this, 

Foh de lady am a kelptomaniac, 
Meanin' dat about sich things 
As fine jewelry an' rings, 

She is crazy an' not guilty — dat's a fac\ 
It am true ole Zeke did creep, 
While de ownah wuz asleep, 

To de chicken roos' (dat lodestone to de black), 
An* a pullet dar he lif, 
But you'll find when proofs you sif, 

As to chickens Zeke's a kelptomaniac." 



De Rivafonoli vs. Corsetti 

4 Paige Ch. 462. 
Quaelibet Jurisdictio cancellos suos habet. 

THE defendant agreed, as the record we read 
In Paige's report of the case, 
That he would appear and sing for the year, 

At complainant's opera place ; 
To the Gothamite he would give delight, 

In the soft Italian tongue, 
He would warble and sing any musical thing 

That ever another had sung ; 
In opera grand, or the comical brand, 

Or in oratorio, 
He would sing with a trill and a rapturous thrill, 

In the role of primo basso. 
But being induced by the wanderlust, 

He couldn't resist the appeals 
Of a fidgety notion to cross the blue ocean 

To the Queen of the fair Antilles. 
Now, when this he heard, complainant demurred, 

Because, if the wizard of song 
Should Gotham forsake, he would certainly take 

His baritone voice along. 



90 Flotsam and Jetsam 

Then vision arose — as the records disclose, — 

In Rivafonoli's brain, 
Of shekels galore — lost to him evermore, — 

If he couldn't Corsetti restrain. 
So, with the intent to try to prevent 

The song-bird taking the wing, 
He filed a bill to make him fulfill 

His agreement to warble and sing; 
And he furthermore pray'd that an order be made 

To keep the defendant in place — 
In other words, that a ne exeat 

Should issue at once in the case. 

Now, the Chancellor that at the hearing sat, 

Realized the grave import 
Of the questions involv'd that had to be solv'd 

By a wholly unprejudiced Court. 
He said 'twould appear to be very clear 

That complainant would have the right 
To obtain a decree that Corsetti 

Should act and sing and recite; 
But, under the law, he plainly saw 

How difficult it would be, 
With the full support of the Chancery Court, 

To enforce the Court's decree; 
For he very much feared, if the case were referred 

To the Master to ascertain 



De Rivafonoli vs. Corsetti 91 

If defendant, in fact, was breaching the pact, 

Such reference would be in vain ; 
The auricular nerve, the Court would observe, 

Of a Master in Chancery, 
Is not attuned so as that he would know 

A major from a minor key, 
And he couldn't detect a glaring defect, 

If before him defendant should sing, 
Nor tell, without doubt, if his voice gave out 

Just the right sort of musical ring; 
Moreover, 'twas true that the Master knew 

Naught at all of the Italian tongue, 
And he never would know in what lingo 

The opera grand was sung. 

As a general thing, if a bird can sing, 

It must — was the gist of the bill, 
But the Court said he couldn't pass a decree 

That could force it against its will : 
And he said 'twas clear that the Court would err, 

And commit a most grievous wrong, 
If it should decree that Corsetti 

Should sing any kind of a song ; 
For it was well known that the great baritone 

Couldn't warble a single note, 
When feeling irate, with the Court's mandate 

Cross-wise in his musical throat. 



92 Flotsam and Jetsam 

Since it would appear that the Fall of the year 

Was the time in the contract set 
For Corsetti to act — and it was a fact 

That the time hadn't come as yet, 
The Court said that he would have to decree 

That there was no right to sue, 
When there wasn't a sign of frost on the vine, 

Nor a drop of the Autumn dew. 
"There must be a limit to a bill quia timet," 

Said the Court, "and it's very clear 
That it can't be maintained nor Corsetti restrained 

In the case which the Court has here ; 
And it is held that a ne exeat 

The Court can never allow, 
When complainant can cite no duty or right 

That can be enforced right now ; 
And suppose there should be a final decree 

That the agreement, its purpose and aim, 
Must be carried through, agreeably to 

The tenor controlling the same, 
It would be absurd to make the song-bird 

Execute the contract, we trow, 
In its true tenor when, Corsetti, we ken, 

Sings only the deep basso" 

So the bill, as it ought, was held for naught, 
As the record of the case reveals, 



De Rivafonoli vs. Corsetti 

And the song-bird flew o'er the ocean blue 
To the Queen of the fair Antilles ; 

And Rivafonoli saw plainly the folly, 
As appears from Paige's report, 

Of trying such a thing as to make a bird sing 
By decree of the Chancery Court. 



93 



In re Goose 

N. and K. R. v. Davis, 78 S. W. Rep. 1050. 

THE plaintiff owned a flock of geese, 
And often they would roam 
Abroad to glean in fields of green, 

And woodlands far from home. 
So one bright day they stray'd away, 

And ere they would turn back, 
They would explore the forage o'er 

Upon the railroad track. 
Just as upon the track they came, 

As the plaintiff's evidence show'd, 
With speed uncheck'd, a train direct 

Was sweeping down the road ; 
Each of the flock stood like a rock, 

As much as if to say: 
"Now, do your worst, we were here first, 

And have the right of way." 
But the coming train swept on amain, 

Like a fiery demon loose, — 
The air was fill'd with maim'd and killed — 

With feathers and with goose. 



In re Goose 95 

The sad decease of plaintiff's geese 

Brought on a bitter suit, 
And the Court august had to adjust 

The matters in dispute. 
The plaintiff show'd defendant road 

Had no lookout ahead. 
The law defied — no brakes applied, 

As the train swift onward sped ; 
He said 'twas true no whistle blew, 

When the danger they foresaw, 
And that said road ignored the Code, 

And wantonly broke the law ; 
For by the Code each separate road 

Said safeguards must not lack, 
When persons or when animals 

Appeared upon the track. 

Defendant road then plainly showed, 

Ere the accident befell, 
The whistle blew both loud and true, 

And the trainmen rang the bell. 
The road denied the law applied 

To flocks of wandering geese, 
Or that the laws made it the cause 

Of the geese's sad decease; 
And, furthermore, the road would plead 

As a complete defense, 



96 Flotsam and Jetsam 

The geese themselves were guilty of 

The grossest negligence ; 
For ev'rywhere (it did aver) 

Th' authorities all agree, 
In any case, to act the goose 

Is negligence per se. 



As the record shows, the point arose 

As to whether it was true, 
That person would a goose include 

Within the law's purview, 
The Court opined, and so did find, 

That a person is oft a goose, 
But to construe the converse true, 

Would be without excuse. 

Next in the suit, rose in dispute 

The point made by the road, 
That goose was not an animal 

As used in Shannon's Code; 
That should the word include a goose, 

'Twould likewise take in all 
The little birds, the busy bees, 

And all that creep or crawl ; 
'Twas so absurd, the Judges fear'd 

The law they'd slightly strain, 



In re Goose 97 

If they should hold for such as these 
Defendant must stop the train. 

As 'twould appear, the Court somewhere 

The meaning must confine, 
They all agreed, and so decreed 

At goose they'd draw the line. 
And solemnly the Court then held 

Defendant should go hence, — 
That goose was not an animal, 

In the statutory sense. 

'Tis said when plaintiff realized 

Not only he'd lost the flock, 
But likewise lost the fees and cost, — 

He suddenly felt a shock : 
And, furthermore, thinking it o'er, 

As he paid his hard-earned pelf, 
In one respect, he did detect 

That he was a goose himself! 



Osculatory Assault 

Fuller v. State., 72 S. W. Rep. 184. 

THE Court down in the Lone Star State 
Defendant Fuller cited 
To appear and plead as to a deed 

For which he was indicted. 
A maiden fair did roundly swear, 

(It was a grievous matter), 
That the defendant puckered up 

His lips and smacked them at her; 
And, furthermore, the maiden swore 

He made the sign of kissing, 
Tho' what that meant, — or the intent — 

The proof thereof was missing. 
Fuller obeyed the summons made, 

And 'gainst the charge defended 
Upon the ground it would be found 

There was no crime intended. 
The proof as made was duly weighed, 

As it nowhere conflicted, 
The Court below — the records show — 

Defendant quick convicted ; 



Oscillatory Assault 99 

Convicted of a base assault, 

And the Court adjudicated 
That the offense — because prepense — 

Was greatly aggravated. 

Now the decree — especially 

The punishment attendant — 
Was not at all what one would call 

Agreeable to defendant; 
The blow it dealt was keenly felt, 

(He could not help but feel it), 
And, therefore, he, most naturally, 

Decided to appeal it. 
Before the Court of last resort, 

For its consideration, 
The case was brought, and earnest thought 

Indulged on osculation. 
The Court divined that it must find 

That Fuller be acquitted, 
Unless 'twas shown a battery could 

Have really been committed ; 
It held the prisoner at the bar, 

When the puckered lips were smacking, 
And when, in fine, the kissing sign 

Was in no manner lacking, 
Was held at bay four feet away, 

And, tho' he aimed them at her, 



ioo Flotsam and Jetsam 

The puckered lips and kissing sign 

Could not the maiden batter ; 
That lips, tho' puckered e'er so much, 

Must have their limitation, 
And, when, in fact, there's no contact, 

There's not an osculation ; 
That what was called the kissing sign, 

Tho' with presumption laden, 
Was but a buss in nubibus 

And could not reach the maiden ; 
That, while indeed 'twould be decreed 

That Fuller be acquitted, 
The Court yet saw another law, 

For which the case was fitted ; 
To substitute a mere salute, 

Or puckered lips for kissing, 
Showed but too plain that in the brain 

Was something surely missing ; 
As, if you'd see a honey bee 

Go circling 'round the bower, 
With smacking lips, as if it sips 

The nectar from the flower — 
But never goes e'en near the rose, 

But seems, in fact, contented 
To buzz about — you'd say no doubt, 

That bee must be demented. 



Osculatory Assault 101 

The Court could but remand the case, 

With proper procedendo, 
To grant the writ, most fit, to wit: 

DeLunatico Inquirendo. 



The Jury 



FROM our forebears, the rolling years 
Have brought us, we admit, 
Some things which are unto the bar 

Of lasting benefit ; 
But 'mongst the things bequeathed to us 

Are some we must condemn, 
As not just what we should have got — 

And the jury is one of them. 
Sometimes we find we are inclin'd 

To think that juries are 
Simply devised to tantalize 

The members of the bar ; 
They are enigmas to us all, 

And oftentimes, methinks, 
As puzzling and mysterious as 

The riddle of the Sphinx. 
To see them sitting in the box, 

With bland and child-like smile, 
They seem to be entirely free 

From anything like guile ; 
They appear to be men actually 

Tn whom we may confide, 



The Jury 

And face to face examine the case — 

Especially our own side ; 
They look so kind, we are inclined 

To think each one a friend, 
And hence disclose our client's woes 

And the wrongs as they impend ; 
Then we relate how cruel Fate 

Our client has pursued, 
And our belief they'll give relief, 

When the facts they have review'd ; 
We show they must in no wise trust 

The other side a whit, 
And warn them 'gainst their lawyer's wiles, 

As from a dangerous pit ; 
But after all the confidence 

And trust in them reposed, 
And after we most carefully 

The pitfalls have exposed, 
They straightway make a grave mistake, — 

Just one of their usual kind — 
As they, (despite we're in the right), 

An adverse verdict find. 

On occasions we a juror see, 

And form th' opinion then, 
That here's a soul who can control 

The other eleven men ; 



103 



104 Flotsam and Jetsam 

Tis our desire him to inspire 

And deeply to impress, 
And hence, with vim, devote to him 

The most of our address ; 
At him we thunder law and facts, 

Which should hold him enrapt, 
But strange! just then, the moment when 

The climax we have capp'd, 
In him we spy a drooping eye, 

And then there comes to view 
(A dread and most portentous sign) 

A smother'd yawn or two. 
We plainly see that there's to be 

A tilt with the slumber-god, 
And we must fight to keep this wight 

Out of the land of Nod ; 
We know we'll meet with sure defeat, 

Unless we manage to keep — 
And that at once — this witless dunce 

And dolt from going to sleep ; 
We fulminate, gesticulate, 

All sorts of noise we make, 
The desk we bang, while we harangue 

To keep this man awake : 
But strange! the more we rant and roar, 

The more we shout and whoop, 



The Jury 105 



The faster come the nods and yawns, 

The more the eye-lids droop, — 
'Tis all in vain — dull drowsiness 

And languor o'er him creep, — 
The god of slumber wins the case — 

The juror's fast asleep. 
Of what avail is eloquence, 

Or knowledge of the law, 
Or argument that's evident 

Without a fleck or flaw? 
When Morpheus waves his leaden wand, 

Then law and facts give way, 
And the drowsy, dull and dozy god, 
Laden with dreams from the land of Nod, 

Holds universal sway. 

Sometimes a juror we perceive, 

Who acts in such a way, 
He seems intent on everything, 

Which we may have to say ; 
He seems to give attention to 

Each argument advanc'd, 
And keeps his eye upon us fix'd, 

And if he were entranc'd ; 
And we conclude his attitude 

Toward us doth attest 



106 Flotsam and Jetsam 

And goes to show conclusively 

How deeply he's impressed ; 
You may surmise our great surprise, 

When he is heard to say, 
The reason why he kept his eye 

Upon us in that way, 
Was our address did so digress, 

It was both pro and con, 
He strained his eye and fagg'd his brain, 
Trying in vain, to ascertain 

Which side 'twas we were on. 



When with reports, text-books and courts 

The lawyer's toil is o'er, 
And he has passed to his reward 

Upon the other shore, 
He need not see the jasper walls, 

Nor yet need he behold 
The crystal sea or gates of pearl, 

Nor tread the streets of gold, 
To know that he's in Paradise, 

For that fact will appear, 
When, as he pleased the scene surveys, 
His eyes shall on this legend gaze : 

11 There are no juries here." 



Afterthought 



WE TRUST each member of the bar, 
Who may have struggled thro' thus far, 
Has found — his struggles not in vain — 
Somewhat to please and entertain ; 
Some jests or fancies to beguile 
The time, with here and there a smile; 
And, tho' these lines may trifles be, 
Like flotsam floating on the sea, 
Or jetsam from the ship cast o'er, 
Drifting with the tide ashore, 
Yet know we "nonsense now and then 
Is relished by the wisest men" ; 
And, therefore, whosoe'er has read 
The nonsense o'er these pages spread, 
And relished it — we clearly ken — 
Has gained an honored station then 
Among the very wisest men. 



OCT 6 1913 



